[Federal Register Volume 70, Number 34 (Tuesday, February 22, 2005)]
[Rules and Regulations]
[Pages 8510-8513]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-3292]


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INTERNATIONAL TRADE COMMISSION

19 CFR Parts 206 and 207


Investigations Relating to Global and Bilateral Safeguard 
Actions, Market Disruption, Trade Diversion and Review of Relief 
Actions; and Investigations of Whether Injury to Domestic Industries 
Results From Imports Sold at Less Than Fair Value or From Subsidized 
Exports to the United States

AGENCY: International Trade Commission.

ACTION: Notice of final rulemaking.

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SUMMARY: The United States International Trade Commission (Commission) 
hereby amends its Rules of Practice and Procedure (Rules) regarding 
antidumping and countervailing duty (AD/CVD) investigations as well as 
certain safeguard and market disruption proceedings. Under the amended 
Rules, parties are required to file prehearing briefs no later than 
five business days before the hearing, and they must file in camera 
requests no later than seven business days prior to the hearing. Such 
in camera requests and any comments to those requests must be served by 
hand-delivery or next-day service. Further, petitions filed after 12 
noon will be deemed to be filed the following business day. The amended 
Rules no longer require clerical or other staff to file an 
administrative protective order (APO) application with the Commission; 
however, they must sign a form maintained by an authorized APO 
applicant. Finally, parties must file new APO applications in NAFTA 
appeals.

DATES: The effective date of these amendments is March 24, 2005.

FOR FURTHER INFORMATION CONTACT: Marilyn R. Abbott, Secretary, United 
States International Trade Commission, telephone 202-205-2000. Hearing-
impaired individuals are advised that information on this matter can be 
obtained by contacting the Commission's TDD terminal at 202-205-1810. 
General information concerning the Commission may also be obtained by 
accessing its Internet server (http://www.usitc.gov).

SUPPLEMENTARY INFORMATION: 

[[Page 8511]]

Background

    On November 5, 2004, the Commission published a Notice of Proposed 
Rulemaking (NOPR) in the Federal Register. 69 FR 64541, November 5, 
2004. In the NOPR, the Commission proposed certain amendments to its 
Rules of Practice and Procedure applicable to AD/CVD proceedings as 
well as parallel amendments to comparable rules regarding certain 
safeguard and market disruption proceedings. The Commission developed 
these proposed amendments after seeking and receiving public comment on 
ways to improve its conduct of AD/CVD investigations (67 FR 72221, 
December 4, 2002).
    The Commission proposed the following amendments to its Rules in 
the NOPR: (a) Requiring parties to file prehearing briefs no later than 
five business days before the hearing, rather than four business days; 
(b) requiring parties to file in camera requests no later than seven 
business days prior to the hearing and any comments to those requests 
within two (2) business days after the filing of the request; (c) 
requiring parties to serve in camera requests and comments to those 
requests by hand-delivery or next-day service; (d) no longer requiring 
clerical or other staff to file an APO application with Commission but 
instead sign a form maintained by an authorized APO applicant; (e) 
stating that petitions filed after 12 noon will be deemed to be filed 
the following business day; and (f) requiring parties to file new NAFTA 
APO applications in NAFTA appeals. The Commission also proposed a minor 
amendment to change references to the Mexican Secretary of Commerce and 
Industrial Development to the Mexican Secretary of Economia. 69 FR 
64541, November 5, 2004.
    In the NOPR, the Commission invited public comment on its proposed 
rule amendments and requested that those comments be filed no later 
than 60 days after publication of the NOPR (i.e., January 4, 2005). The 
Commission did not receive any public comments to the NOPR. 
Accordingly, the Commission adopts these final amended rules without 
change from the proposed amendments in the NOPR.

Regulatory Analysis

    The Commission has determined that these amended rules do not meet 
the criteria described in Section 3(f) of Executive Order 12866 (58 FR 
51735, Oct. 4, 1993) and thus do not constitute a significant 
regulatory action for purposes of the Executive Order.
    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) is 
inapplicable to this rulemaking because it is not one for which a 
notice of proposed rulemaking is required under 5 U.S.C. 553(b) or any 
other statute. Although the Commission published a notice of proposed 
rulemaking, the proposed regulations are ``agency rules of procedure 
and practice,'' and thus are exempt from the notice requirement imposed 
by 5 U.S.C. 553(b).
    These amended rules do not contain federalism implications 
warranting the preparation of a federalism summary impact statement 
pursuant to Executive Order 13132 (64 FR 43255, Aug. 4, 1999).
    No actions are necessary under the Unfunded Mandates Reform Act of 
1995 (2 U.S.C. 1501 et seq.) because the amended rules will not result 
in the expenditure by State, local, and tribal governments, in the 
aggregate, or by the private sector, of $100,000,000 or more in any one 
year, and will not significantly or uniquely affect small governments.
    The amended rules are not major rules as defined by section 804 of 
the Small Business Regulatory Enforcement Fairness Act of 1996 (5 
U.S.C. 801 et seq.). Moreover, they are exempt from the reporting 
requirements of the Contract With America Advancement Act of 1996 (Pub. 
L. 104-121) because they concern rules of agency organization, 
procedure, or practice that do not substantially affect the rights or 
obligations of non-agency parties.
    The amendments are not subject to section 3504(h) of the Paperwork 
Reduction Act (44 U.S.C. 3501 et seq.), since they do not contain any 
new information collection requirements.

List of Subjects in 19 CFR Parts 206 and 207

    Administrative practice and procedure, Investigations.


0
For the reasons stated in the preamble, the Commission amends 19 CFR 
parts 206 and 207 as follows:

PART 206--INVESTIGATIONS RELATING TO GLOBAL AND BILATERAL SAFEGUARD 
ACTIONS, MARKET DISRUPTION, TRADE DIVERSION, AND REVIEW OF RELIEF 
ACTIONS

0
1. The authority citation for part 206 continues to read as follows:

    Authority: 19 U.S.C. 1335, 2251-2254, 2451-2451a, 3351-3382, 
sections 103, 301-302, Pub. L. 103-465, 108 Stat. 4809.


0
2. Amend Sec.  206.17 by revising paragraphs (b) introductory text, 
(b)(1) introductory text, and (b)(1)(iv) to read as follows:


Sec.  206.17  Limited disclosure of certain confidential business 
information under administrative protective order.

* * * * *
    (b) Administrative protective order. The administrative protective 
order under which information is made available to the authorized 
applicant shall require the applicant to submit to the Secretary a 
personal sworn statement that, in addition to such other conditions as 
the Secretary may require, the applicant shall:
    (1) Not divulge any of the confidential business information 
obtained under the administrative protective order and not otherwise 
available to the applicant, to any person other than
* * * * *
    (iv) Other persons, such as paralegals and clerical staff, who are 
employed or supervised by an authorized applicant; who have a need 
thereof in connection with the investigation; who are not involved in 
competitive decisionmaking on behalf of an interested party which is a 
party to the investigation; and who have signed a statement in a form 
approved by the Secretary that they agree to be bound by the 
administrative protective order (the authorized applicant shall be 
responsible for retention and accuracy of such forms and shall be 
deemed responsible for such persons' compliance with the administrative 
protective order);
* * * * *

0
3. Amend Sec.  206.45 by adding paragraph (e) as follows:


Sec.  206.45  Time for reporting.

* * * * *
    (e) Date of filing. Any petition under this subpart E that is filed 
after 12:00 noon shall be deemed to be filed on the next business day.

PART 207--INVESTIGATIONS OF WHETHER INJURY TO DOMESTIC INDUSTRIES 
RESULTS FROM IMPORTS SOLD AT LESS THAN FAIR VALUE OR FROM 
SUBSIDIZED EXPORTS TO THE UNITED STATES

0
4. The authority citation for part 207 continues to read as follows:

    Authority: 19 U.S.C. 1336, 1671-1677n, 2482, 3513.


0
5. Amend Sec.  207.3 by revising paragraph (b) as follows:


Sec.  207.3  Service, filing, and certification of documents.

* * * * *
    (b) Service. Any party submitting a document for inclusion in the 
record of

[[Page 8512]]

the investigation shall, in addition to complying with Sec.  201.8 of 
this chapter, serve a copy of each such document on all other parties 
to the investigation in the manner prescribed in Sec.  201.16 of this 
chapter. If a document is filed before the Secretary's issuance of the 
service list provided for in Sec.  201.11 of this chapter or the 
administrative protective order list provided for in Sec.  207.7, the 
document need not be accompanied by a certificate of service, but the 
document shall be served on all appropriate parties within two (2) days 
of the issuance of the service list or the administrative protective 
order list and a certificate of service shall then be filed. 
Notwithstanding Sec.  201.16 of this chapter, petitions, briefs, 
requests to close a portion of the hearing, comments on requests to 
close a portion of the hearing, and testimony filed by parties pursuant 
to Sec. Sec.  207.10, 207.15, 207.23, 207.24, 207.25, 207.65, 207.66, 
and 207.67, shall be served by hand or, if served by mail, by overnight 
mail or its equivalent. Failure to comply with the requirements of this 
rule may result in removal from status as a party to the investigation. 
The Commission shall make available to all parties to the investigation 
a copy of each document, except transcripts of conferences and 
hearings, business proprietary information, privileged information, and 
information required to be served under this section, placed in the 
record of the investigation by the Commission.
* * * * *

0
6. Amend Sec.  207.7 by revising paragraphs (b) introductory text, 
(b)(1) introductory text, and (b)(1)(iv) to read as follows:


Sec.  207.7  Limited disclosure of certain business proprietary 
information under administrative protective order.

* * * * *
    (b) Administrative protective order. The administrative protective 
order under which information is made available to the authorized 
applicant shall require the applicant to submit to the Secretary a 
personal sworn statement that, in addition to such other conditions as 
the Secretary may require, the applicant shall:
    (1) Not divulge any of the business proprietary information 
obtained under the administrative protective order and not otherwise 
available to the applicant, to any person other than
* * * * *
    (iv) Other persons, such as paralegals and clerical staff, who are 
employed or supervised by the authorized applicant; who have a need 
thereof in connection with the investigation; who are not involved in 
competitive decision making for an interested party which is a party to 
the investigation; and who have signed a statement in a form approved 
by the Secretary that they agree to be bound by the administrative 
protective order (the authorized applicant shall be responsible for 
retention and accuracy of such forms and shall be deemed responsible 
for such persons' compliance with the administrative protective order);
* * * * *

0
7. Amend Sec.  207.10 by revising paragraph (a) as follows:


Sec.  207.10  Filing of petition with the Commission.

    (a) Filing of the petition. Any interested party who files a 
petition with the administering authority pursuant to section 702(b) or 
section 732(b) of the Act in a case in which a Commission determination 
under title VII of the Act is required, shall file copies of the 
petition, including all exhibits, appendices, and attachments thereto, 
pursuant to Sec.  201.8 of this chapter, with the Secretary on the same 
day the petition is filed with the administering authority. If the 
petition complies with the provisions of Sec.  207.11, it shall be 
deemed to be properly filed on the date on which the requisite number 
of copies of the petition is received by the Secretary, provided that, 
if the petition is filed with the Secretary after 12:00 noon, the 
petition shall be deemed filed on the next business day. The Secretary 
shall notify the administering authority of that date. Notwithstanding 
Sec.  201.11 of this chapter, a petitioner need not file an entry of 
appearance in the investigation instituted upon the filing of its 
petition, which shall be deemed an entry of appearance.
* * * * *

0
8. Revise Sec.  207.23 as follows:


Sec.  207.23  Prehearing brief.

    Each party who is an interested party shall submit to the 
Commission, no later than five (5) business days prior to the date of 
the hearing specified in the notice of scheduling, a prehearing brief. 
Prehearing briefs shall be signed and shall include a table of 
contents. The prehearing brief should present a party's case concisely 
and shall, to the extent possible, refer to the record and include 
information and arguments which the party believes relevant to the 
subject matter of the Commission's determination under section 705(b) 
or section 735(b) of the Act. Any person not an interested party may 
submit a brief written statement of information pertinent to the 
investigation within the time specified for filing of prehearing 
briefs.
    9. Amend Sec.  207.24 by revising paragraph (d) as follows:


Sec.  207.24  Hearing.

* * * * *
    (d) Closed sessions. Upon a request filed by a party to the 
investigation no later than seven (7) business days prior to the date 
of the hearing that identifies the subjects to be discussed, specifies 
the amount of time requested, and justifies the need for a closed 
session with respect to each subject to be discussed, the Commission 
may close a portion of a hearing to persons not authorized under Sec.  
207.7 to have access to business proprietary information in order to 
allow such party to address business proprietary information during the 
course of its presentation. If any party wishes to comment on the 
request to close a portion of the hearing, such comments must be filed 
within two (2) business days after the filing of the request. In 
addition, during each hearing held in an investigation conducted under 
section 705(b) or section 735(b) of the Act, following the public 
presentation of the petitioner(s) and that of each panel of 
respondents, the Commission will, if it deems it appropriate, close the 
hearing to persons not authorized under section 207.7 to have access to 
business proprietary information in order to allow Commissioners to 
question parties and/ or their representatives concerning matters 
involving business proprietary information.

0
10. Amend Sec.  207.93 by revising paragraphs (b)(6), (c)(1), 
(c)(2)(ii), (c)(3), (c)(4)(ii)(A), (c)(5)(i), (c)(5)(ii), (c)(5)(iii), 
and (e); and by adding paragraph (b)(7) as follows:


Sec.  207.93  Protection of proprietary information during panel and 
committee proceedings.

* * * * *
    (b) * * *
    (6) Any officer or employee of the Government of Canada or the 
Government of Mexico who the Canadian Minister of Trade or the Mexican 
Secretary of Economia, as the case may be, informs the Commission 
Secretary needs access to proprietary information to make 
recommendations regarding the convening of extraordinary challenge 
committees; and
    (7) Counsel representing, and other staff providing support to, the 
investigating authority, the Commission.
    (c) Procedures for obtaining access to proprietary information 
under

[[Page 8513]]

protective order--(1) Persons who must file an application for release 
under protective order. To be permitted access to proprietary 
information in the administrative record of a determination under panel 
review, all persons described in paragraphs (b)(1), (2), (4), (5), (6), 
or (c)(5)(i) of this section shall file an application for a protective 
order.
    (2) * * *
    (ii) Such forms shall require the applicant to submit a personal 
sworn statement that, in addition to such other conditions as the 
Commission Secretary may require, the applicant will:
    (A) Not disclose any proprietary information obtained under 
protective order and not otherwise available to any person other than:
    (1) Personnel of the Commission involved in the particular panel 
review in which the proprietary information is part of the 
administrative record,
    (2) The person from whom the information was obtained,
    (3) A person who is authorized to have access to the same 
proprietary information pursuant to a Commission protective order, and
    (4) A clerical person retained or employed by and under the 
direction and control of a person described in paragraph (b)(1), (2), 
(5), or (6) of this section who has been issued a protective order, if 
such clerical person has signed and dated an agreement, provided to the 
Commission Secretary upon request, to be bound by the terms set forth 
in the application for a protective order of the person who retains or 
employs him or her (the authorized applicant shall be responsible for 
retention and accuracy of such forms and shall be deemed responsible 
for such persons' compliance with the administrative protective order);
    (B) Not use any of the proprietary information released under 
protective order and not otherwise available for purposes other than 
the particular proceedings under Article 1904 of the Agreement;
    (C) Upon completion of panel review, or at such other date as may 
be determined by the Commission Secretary, return to the Commission, or 
certify to the Commission Secretary the destruction of, all documents 
released under the protective order and all other material (such as 
briefs, notes, or charts), containing the proprietary information 
released under the protective order, except that those described in 
paragraph (b)(1) of this section may return such documents and other 
materials to the United States Secretary. The United States Secretary 
may retain a single file copy of each document for the official file.
    (D) Update information in the application for protective order as 
required by the protective order; and
    (E) Acknowledge that the person becomes subject to the provisions 
of 19 U.S.C. 1677f(f) and to this subpart, as well as corresponding 
provisions of Canadian and Mexican law on disclosure undertakings 
concerning proprietary information.
    (3) Timing of applications. An application for any person described 
in paragraph (b)(1) or (b)(2) of this section may be filed after a 
notice of request for panel review has been filed with the Secretariat. 
A person described in paragraph (b)(4) of this section shall file an 
application immediately upon assuming official responsibilities in the 
United States, Canadian or Mexican Secretariat. An application for any 
person described in paragraph (b)(5) or (b)(6) of this section may be 
filed at any time after the United States Trade Representative, the 
Canadian Minister of Trade, or the Mexican Secretary of Economia, as 
the case may be, has notified the Commission Secretary that such person 
requires access.
    (4) * * *
    (ii) Applications of persons described in paragraph (b)(2) of this 
section--(A) Filing. A person described in paragraph (b)(2) of this 
section, concurrent with the filing of a complaint or notice of 
appearance in the panel review on behalf of the participant represented 
by such person, shall file the completed original of the form (NAFTA 
APO Form C) and three (3) copies with the Commission Secretary, and 
four (4) copies with the United States Secretary.
* * * * *
    (5) Persons who retain access to proprietary information under a 
protective order issued during the administrative proceedings. (i) If 
counsel or a professional has been granted access in an administrative 
proceeding to proprietary information under a protective order that 
contains a provision governing continued access to that information 
during panel review, and that counsel or professional retains the 
proprietary information more than fifteen (15) days after a First 
Request for Panel Review is filed with the Secretariat, that counsel or 
professional, and such clerical persons with access on or after that 
date, become immediately subject to the terms and conditions of NAFTA 
APO Form C maintained by the Commission Secretary on that date 
including provisions regarding sanctions for violations thereof.
    (ii) Any person described in paragraph (c)(5)(i) of this section, 
concurrent with the filing of a complaint or notice of appearance in 
the panel review on behalf of the participant represented by such 
person, shall:
    (A) File the completed original of the form (NAFTA APO Form C) and 
three (3) copies with the Commission Secretary; and
    (B) File four (4) copies of the completed NAFTA APO Form C with the 
United States Secretary.
    (iii) Any person described in paragraph (c)(5)(i) of this section 
must submit a new application for a protective order at the 
commencement of a panel review.
* * * * *
    (e) Retention of protective orders; service list. The Commission 
Secretary shall retain, in a public file, copies of applications 
granted, including any updates thereto, and protective orders issued 
under this section, including protective orders filed in accordance 
with paragraph (b)(6)(ii) of this section. The Secretary shall 
establish a list of persons authorized to receive proprietary 
information in a review, including parties whose applications have been 
granted.
* * * * *

    By Order of the Commission.

    Issued: February 16, 2005.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. 05-3292 Filed 2-18-05; 8:45 am]
BILLING CODE 7020-02-P